Why Obama’s stalled immigration plan is back before a skeptical Texas judge

The Obama administration heads back into federal court before a skeptical judge here Thursday in an attempt to revive the president’s plan to shield up to 5 million people from the threat of deportation.

U.S. District Judge Andrew S. Hanen of Texas, who ordered a freeze last month on President Obama’s executive actions on immigration, has demanded that government lawyers “fully explain” why the administration began accepting applications for the program earlier than they had indicated.

The hearing is one more step in what is expected to be a long legal battle over an issue that has divided Democrats and Republicans and will be a focus in the 2016 presidential campaign. Legal experts predict that the case will ultimately end up before the Supreme Court, but not before delaying a signature executive effort by Obama in the final two years of his presidency.

The administration wants to move the case along in hopes of prevailing in court and implementing the immigration plan while Obama is still in office.

Obama announced in November that he was using his executive power to grant three-year work permits and temporary protection from deportation to about 4 million adults who are parents of U.S. citizens and have lived in the country for at least five years. He said the program was simply an extension of his authority to prioritize immigration enforcement; the administration says there is no practical way to deport all of the estimated 11 million people living here illegally.

But Hanen ordered the freeze Feb. 16 after Texas and 25 other states sued to halt the program, arguing that Obama had overstepped his constitutional authority by acting without congressional approval. The states also said the immigration plan would impose an unfair financial burden on them.

On Feb. 23, the administration asked Hanen to lift his own injunction and allow the president’s immigration initiatives to proceed. California, New York, Illinois and 11 other states — many with the highest populations of immigrants eligible for Obama’s program — asked a federal appeals court March 12 to lift Hanen’s freeze, saying the states cannot interfere with federal immigration policy.

Those states also argued that Obama’s plan would actually benefit individual states in the form of increased tax revenue from more workers, as well as stronger families. The motion filed by the states called Hanen’s order “unprecedented and wrong.”

The majority of immigrants eligible for “deferred action” live in those 14 states — 1.5 million in California, 338,000 in New York and 280,000 in Illinois.

Texas, however, has the second-most eligible immigrants, with 743,000, according to Migration Policy Institute estimates.

Hanen, who was appointed by President George W. Bush, has expressed hostility toward executive actions. He has also indicated that he sympathizes with claims by Texas and the other 25 states that the immigration plan would impose financial hardships such as the costs of issuing driver’s licenses.

“There will be no effective way of putting the toothpaste back in the tube’’ if the government begins granting immigrants deferred status, Hanen wrote in his opinion blocking the plan.

Hanen’s ruling came two days before U.S. Citizenship and Immigration Services was set to start accepting applications for the program.

Obama’s plan would grant three years’ protection from deportation to up to 5 million people living in the U.S. illegally. The largest part, Deferred Action for Parents of Americans, or DAPA, would offer three-year work permits to parents of citizens and other legal residents. It would not be open to recent arrivals or to people with serious criminal records.

DAPA would affect more than 4 million people who have lived in the United States for at least five years and are the parents of U.S. citizens or legal permanent residents.

Obama said at the time that he would issue the same protections to a group of immigrants who came here as young people, an expansion of 2012’s Deferred Action for Childhood Arrivals program, or DACA. About 300,000 more people would be eligible under the expanded eligibility rules; the Department of Homeland Security later announced it would begin accepting applications from those people starting Feb. 18.

However, the department also said the change from two years of protection to three years would take effect before that.

The current dispute in court in Brownsville is over what Justice Department lawyers told the judge during recent hearings as scheduling matters were discussed. In January, government lawyers said nothing would be happening before Feb. 18.

This month, government lawyers disclosed to Hanen that, in what they called “an abundance of caution,” the government had been granting the three-year permits since November to DACA applicants who qualified under the 2012 rules. The talk of the Feb. 18 date “may have led to confusion,” six Justice Department lawyers wrote in a legal brief.

Lawyers for Texas and the other states said the actions were “difficult to square” with the government lawyers’ earlier statements in the case.

The administration is eager to move on and make its case to the U.S. 5th Circuit Court of Appeals in New Orleans. It has asked the appellate court for a decision on the stay within 14 days and for arguments on the constitutional issues in the case to be held by June.

But the matter remains in Hanen’s court for now, and lawyers for the 26 states have asked permission to look further into the administration’s actions on the immigration program.

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